Separation Agreement: What is it? How do I write one? What do I do with it?
What is a Separation Agreement? How do I write it and what do I do with it?
What is a Separation Agreement?
A Separation Agreement sets forth the specific terms of a divorce. It is a written document, which once signed, becomes one of the legal documents in a no-fault divorce in Massachusetts.
You should have a Separation Agreement if you are filing for a no-fault, uncontested (both spouses agree to it) divorce. The Separation Agreement is drafted before you file for divorce and will be filed in court with the rest of the divorce papers.
Click here for a sample Separation Agreement from the Boston Bar Association. Keep in mind that this is just a sample and it is best to have your Separation Agreement written to your specific needs and circumstances.
Can I just write it myself or with my spouse?
Yes, you can draft a Separation Agreement yourself or with your spouse. However, if the Separation Agreement is not drafted properly or fairly, the judge can do a few things; the judge may reject it, ask for certain parts to be clarified, or ask for certain parts to be changed. Thus, it is beneficial to have a professional such as a mediator or lawyer draft it for you.
If a mediator drafts a Separation Agreement for two divorcing spouses, it is recommended (but not required) that each spouse seek their own legal counsel to review the agreement. An attorney may represent both parties in a Separation Agreement, “the terms of which are arrived at through mediation” but must still advise the clients to have their own individual lawyers, and must get informed consent from both parties if they wish to proceed with joint representation by the same lawyer. See Massachusetts Bar Association Ethics Opinion 53.
If an attorney drafts a Separation Agreement for two spouses, that attorney can only represent one of the spouses. Make sure you seek your own legal representation if your spouse presents you with a Separation Agreement drafted by his or her attorney, or even if your spouse drafted it himself.
What kinds of things are covered in the Separation Agreement?
Separation Agreements cover things relating to children, finances, alimony, property, and health insurance. Essentially, anything can be written into the Separation agreement, but the main things typically covered are:
- Child support
- Child custody
- Change of name
- What will happen with personal property
- What will happen with the home the family lived/lives in
- What happens with taxes
- What happens to debt
Also, protective orders which say, for example, that a spouse cannot enter the house, or protection from abuse, can be written into the Separation Agreement.
Does it need to be signed?
Yes, a Separation Agreement is only good and enforceable if signed by both spouses. Therefore, it must be signed, notarized, and filed with the other divorce documents in the proper court. If your spouse wrote the agreement alone or with his/her own lawyer (in other words, you and your spouse did not write it together) then you should get advice from your own, independent lawyer before signing. Your spouse cannot force you or blackmail you to sign a Separation Agreement. If this happens, do not sign it and talk to your own lawyer immediately.
What happens to the Separation Agreement after we go to court?
Most of the time, a Separation agreement becomes part of the divorce judgment, unless the judge decides is it unfair to one spouse or it seems like someone was forced to sign it. This is another reason why it is always best practice for a party to a Separation Agreement to have his or her own lawyer go over the Separation Agreement to make sure it is fair, and thus has a better chance of being accepted by the judge.
What if we don’t agree on the things to put in the Separation Agreement?
In court, you will have the chance to tell and “present” to the judge the issues you and your spouse cannot agree on. The judge will decide these issues, and you will have the opportunity to testify and tell your story and present witnesses if necessary.
What if we don’t file the Separation Agreement with the court?
If you do not include the Separation Agreement in your divorce documents to be filed with the court, it exists simply as a contract between you and your spouse, and it is not a court order. This would make it difficult to enforce, so if you want it to be enforceable if your spouse does not follow it, you should file the Separation Agreement in court with the rest of your divorce documents.
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